The sporadic way that various members of the Supreme Court and the legal community treat the principle of stare decisis is increasingly striking. At times, the rule of stare decisis appears to be trotted out in defense of decisions that were actually reached on quite independent grounds. At other times, the dictates of the rule appear to be casually ignored when other factors call for the overruling of a precedent. It is tempting, therefore, to dismiss the rule of stare decisis as a mere rhetorical device, much like the question of whether a Supreme Court nominee's judicial philosophy is an appropriate subject of senatorial inquiry.
This article analyzes whether the Court is justified in invoking a more forceful rule of stare decisis in statutory cases than in other instances. The article begins by analyzing some of the conventional justifications that have been offered for the rule. Part I evaluates the retrospective theory of congressional acquiescence, which posits that Congress, by not enacting legislation to reverse the Court's construction of a statute, demonstrates its approval of that earlier precedent. Part I argues that this rationale is unable to support a heightened rule of statutory stare decisis because it fails to reflect the realities of the legislative process and is inconsistent with the established goals of statutory interpretation. Part II considers two resource allocation principles that have been advanced in defense of a heightened rule of statutory stare decisis. These principles posit that the Court need not expend its resources on revisiting statutory precedents either because Congress is available to serve that role, or, alternatively, because Congress is indifferent to the accuracy of judicial interpretations of statutes. Although these theories attempt to allocate resources efficiently between Congress and the Court, this Part argues that they do not succeed, and that a heightened or absolute rule of statutory stare decisis can be supported only by some normative theory that puts the job of revisiting judicial construction of statutes on Congress' shoulders.
Part III develops such a normative theory based on a vision of constitutional separation of powers. Examining the role that the courts have fashioned for themselves in statutory interpretation, this article suggests that the dominant role courts play in the development of statutory law poses significant countermajoritarian difficulties. In light of these difficulties, this article asserts that it is critical to reinvolve Congress as an active participant in this ongoing process of statutory lawmaking. One way to do this is to let Congress know that it, and only it, is responsible for reviewing the Court's statutory decisions, and that it, and only it, has the power to overrule the Court's interpretations of federal statutes. Beyond defending the traditional heightened rule of statutory stare decisis, this article concludes that the Supreme Court should adopt an absolute rule of stare decisis for all of its statutory and federal common law decisions. Finally, Parts IV and V consider and reject a variety of potential challenges to the separation-of-powers model and proposal this article sets forth.
Lawrence C. Marshall,
"Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol88/iss2/2